The false dichotomy between Guarantee-constitutionalism and judicial activism

The emergence of different post-positivist theories of law, particularly those called neo-constitutionalists, have placed at the center of the philosophical scene the alleged tension between respect for constitutional guarantees and judicial activism. This paper tries to show how, particularly in the Latin American countries, it is not only a false dichotomy, but in many cases those proactive judicial practices are the only possible way to guarantee the protection of fundamental rights -especially economic, social and political rights-.